1. This is an appeal under Clause 15 of the Letters Patent against the judgment of Umamaheswaram, J. D/- 23rd February 1961 in A. S. No. 365 of 1956 by which he affirmed the judgment of the trial Court.
2. The suit was for setting aside the alienations or joint family properties and for partition; and recovery or possession of the Plaintiffs half-share therein. The Plaintiff in the suit were two of the sons of one Seshappa Naidu, who died in 1932. The first defendant is a brother and the second defendant was the widow of another brother, one Ramasubba Naidu, who died in 1948. The alienees of the Joint family properties were imp leaded as defendants 3 to 14. Defendants 15 to 22 were creditors who had obtained decrees. Defendants 23 to 25 were the legal representatives of some of the deceased creditors, me alienees resisted the suit taking various pleas and contending that the alienations bind the family. During the pendency of the suit, the second plaintiff died.
3. The learned Subordinate Judge declared that the allenations were not binding on the share of the first plaintiff and directed that he be put in possession of nis share. Defendant No, 4 was an alienee of items 13 to
18 of the Plaint 'A' schedule and so far as those items were concerned, the learned Subordinate Judge directed that they be divided into four equal shares and that the first plaintiff be put in possession of one such share on payment of Rs. 798-6-0 to the fourth defendant. He decreed certain other reliefs, which, it would be unnecessary to consider for the purposes of this appeal,
4. The fourth defendant preferred an appeal to this Court, and, as we have indicated, our learned brother Umamaheswaram J. affirmed the judgment of the trial court and dismissed the appeal. The said fourth defendant is the appellant before us and we are concerned with the alienation of items 13 to 18 of the plaint 'A' schedule in his favour. These items were sold by Ramasucba Naidu, Plaintiff's brother, who was the manager, under the original of Ex. B. 8 at. 12-7-1944, to one Rebala Sundara Rami Reddy for Rs. 5,000/-. It is significant to nonce that the Plaintiffs and the first defendant also joined as vendors. The said Sundara Rami Ready sold the said items to D. 4 under Original of Ex. B. 34 Dt. 7-5-50 for Rs. 5000/-.
5. The learned Subordinate Judge found on the evidence that Ramasubba Naidu purchased items 23, 24 and 26 of 'A' schedule under the original of Ex. B, 7 dated 2-7-43, raising a loan under a promissory note from the father of D. W. 2. D. W. 2 deposed that the pronote was executed by Ramasubba Naidu, D. 1 and the second plaintiff in his father's favour and that D. W. 1 discharged the pronote and took It. The said promissory note was not filed, but the amount due there under was found to be Rs. 3,185-8-0 on the date of alienation under Ex. B. 8. That debt was discharged from the sale price of Rs. 5000/-under Ex. B. 8. But, there was no evidence as to now the balance of the sate price of Rs. 1,814-8-0 was spent. The learned Subordinate Judge, therefore, held that the sale under Ex. B. 8 was binding on the family to We extent of Rs. 3185-8-0 which was paid in discharge or a loan raised for the purchase of certain items of family properties In the said view, the learned Subordinate Judge upheld the sale under EX. B. 8 to the extent or Rs. 3185-8-0 and held that the first plaintiff could recover his one-fourth share on payment of his share of the debt to the fourth defendant i. e., one fourth of Rs. 3,185-8-0 which amounted to Rs. 796-6-0.
6. The finding that the sale of items 13 to 18 or the plaint 'A' schedule was binding on the members or the family to the extent of Rs. 3,185-8-0, is not challenged before us. Further it must be said that the challenging co-parceners must be deemed to have acquiesced in the transaction (Ex. B. 7) by which the manager acquired items 23, 24 and 26 of plaint 'A' schedule as they claimed a share therein treating them as family properties, Further, there is the evidence of D.W. 2 noticed by us that the purchase price was paid By borrowing under a promissory note executed by Ramasubba Naidu, D. 1 and the second Plaintiff. Be it noted that the sale price was Rs. 5000/-and the balance of the sale price was Rs. 1,814-8-0. Further, it is not disputed that D-4 as a vendee from the vendee under Ex. 8. 8 cannot ash for equities to be worked out in his favour. But the contention advanced by Sri Ramasarma is that as the purchaser had paid a fair price for the property sold and it has also been found that more than three-fifths of the price went in discharge of a debt binding on the family, the sale has to be upheld in toto. He seeks support for his contention from the well settled rule that a purchaser is not bound to see to the application of the sale proceeds. In the circumstances he would say that the sale must Be upheld Un-conditionally, He relies on the observations of the Full Bench in Permanayakam Pillai v. Sivaraman, : AIR1952Mad419 , which occur in the reported judgment at p. 320 (of Mad LJ) : (at p. 428 of AIR) thus:
'It the allenation is ultimately found to be supported by partial necessity or benefit, what are the rights of the alienee in such a case in respect of that portion of the consideration which has been applied for purposes binding on the family? It is always difficult for the father or manager of the family to sell exactly that extent of property which is sufficient to meet the particular necessity. Some margin, therefore, has to be allowed and If a large part of The consideration for the sale or mortgage has been applied for purposes binding on the family and if the alienee acts in good faith and it can be shown that the Sale was Justified by legal necessity, the sale may be upheld in its entirety. It is not airways easy to fix the proportion of the consideration which must be established to justify the sale in such circumstances. It is a question which must be decided on the facts of each case.' It is apparent that the decision has to rest on the peculiar facts of each case. There is a clear finding in the instant case that the purchaser under Ex. B. 8 has not made proper enquiries at the time of purchase and that he cannot, therefore, claim to be a puichaser, who mads proper inquiries at the time of the purchase. Further, the Full Bench has stated its conclusions on a review of the case law at p. 333 (of Mad LJ) (at p. 437 of AIR) some of which only may he read here as bearing on the question at issue:
(2) Where an alienation is made by a father or manager of a joint Hindu family and if either the alienation is fully supported by necessity or supported by necessity except to a small extent, the alienation has to be upheld.
(3) If, however, the alienation made by the father or manager of a Joint family is supported only by partial necessity, the alienee would be entitled in a suit for partition the situated either by him or by other coparceners, impugning the alienation to have the alienor's share allotted to hint and also to have the binding portion of the consideration distributed equally having regard to the interest of the auenor and the value of the property alienated.
(4) If the non-alienating coparcener challenges the sale made by the father or manager of the joint family property on the ground that it is not binding on him but institutes a suit only to recover his share in the property alienated thereby admitting the right of the alienee to the other share in that property, and if it is found that the alienation Is supported by partial necessity, the common burden discharged from and out of the consideration should be distributed proportionately in the same suit on the principle of Vadivalam v. Natesam, ILR 37 Mad 435 : (AIR 1914 Mad 582).
(7) The share or in other words the traction of the share which the alienee acquires is unalterably fixed on the date of the alienation and Is not subject to fluctuation either by subsequent births or deaths in the family and in all respects his rights must be determined and equities worked out as on the date of the alienation.'
7. In the Instant case, the plaintiff sued for partition and separate possession of their shares in the Joint family properties, alleging that the alienations were not binding on them. So the instant case attracts the fourth conclusion set out supra. That decision was rendered with reference to the facts of that case, which were that a son sued his father and the alienee for partition of the familyproperties challenging the alienation made by the father. It would appear that the father had sold certain, lands for Rs. 13,400/- out of which a sum of Rs. 7022/- was applied for the discharge of the binding debts of the family. After stating their conclusions, the learned Judges, granted to the Plaintiff (the son) a decree for his half snare or the property In question on condition that he paid the alienee a half share of the binding consideration i.e., half of Rs. 7022/- which is 3,511/-. That result would ensure whether the principle adumbrated in vadivalam v. Natesana 23 Mad LJ 256: ILR 37 Mad 435: (AIR. 1914 Mad 582), was applied or on the principle of the alienee working out his rights in a partition suit. The said decision is binding on us; and, if so, no exception could be taken to the decree of the learned Subordinate Judge aflirmed by our learned Brother Umamaheswaram J.
8. But Sri Rama Sarma for the appellant submitsthat in the peculiar circumstances of this case the alieneemerits the relief of retaining the property in question.Firstly, he drew our attention to the fact that all theco-parceners, including the challenging co-parceners, wereparties to Ex. B-8, the questioned alienation. He invited usto take notice of the fact that D-l and the second plaintiff also joined in the execution of the pronote underwhich money was borrowed for the purchase of items 23,24 and 26 of the plaint 'A' schedule. He, therefore, urgedthat at all material times the co-parcensrs participated inthese transactions viz., the acquisition of property as alsothe alienation which is now questioned, and further manthe alienation is found to be binding to the extent orthree-fourths of the property. Sri Rama sarma suggestedthat the alienee is ready and willing to pay the plaintiffshare of the sale price of which there was no proof thatIt was appropriated for the benefit of the family. If maybe recalled that it was held concurrently that there wasno evidence as to how the balance of the sale price ofRs. 1,814-8-0 was spent.
9. These facts and circumstances cannot be seriously disputed by the other side, and we are inclined to grant the relief that the appellant could retain the share decreed to the plaintiffs which is a little less than 2 acres, on his paying the respondent (who is D-1 brought on record as the legal representative of the deceased plaintiff), half of Rs. 1,314-8-0 i.e., 907-4-0, being the plaintiffs' share of the sale price which was not shown to have been applied for the benefit of the family.
10. A decree, will therefore, issue in terms stated supra.
11. The L.P.A. is allowed, but in the circumstances,there will be no order as to costs.